Administrative Appeals Office Ignores USCIS Policy on L-1B Specialized Knowledge

In a July 2008 decision, the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) made a fundamental mistake by concluding that it is not required to follow USCIS headquarters’ policy memos. [1] What ever happened to chain of command?

In the case, GSTechnical Services Inc. sought an L-1 specialized knowledge visa for an employee, Sameer Sharma. [2] The AAO held that the employee’s two years of experience on two full-cycle SAP projects was insufficient to prove “specialized knowledge” to qualify for an L-1 visa as an SAP enterprise resource planning consultant.Â

As background, L-1 visas are available for managers, executives, and employees serving in a “specialized knowledge” capacity. Regulations define specialized knowledge as “knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” [3]

In this case, the AAO reached the extraordinary conclusion that it need not follow the “Puleo Memo” from USCIS headquarters providing guidance on the meaning of “specialized knowledge” [4] because the memo doesn’t “establish judicially enforceable standards.” [5] It’s irrelevant whether a court would enforce the memo’s standards. What’s important is that policy memos are “binding on all USCIS officers,” including the AAO. [6] The AAO’s insistence on ignoring the Puleo Memo is an astonishing example of AAO ignoring their bosses at AAO headquarters.

Note that although policy memoranda are “binding on all USCIS officers,” that doesn’t mean that an applicant can file a lawsuit in court against USCIS for failing to follow a policy memo.  Courts have consistently held that when internal agency guidelines impose obligations on officials, an individual does not have a right to sue to force compliance with those guidelines. [7]

The effect of ignoring the Puleo Memo was to instead rely on older caselaw holding that to qualify for L-1B status an individual must be a “key employee” and that visas will be limited to a “narrowly drawn” group that is not “large.” [8] Since July, some companies’ L-1B petitiions have been delayed and denied by USCIS officers applying the reasoning of this AAO decision.

There’s an adage that “bad facts make bad law.” This AAO decision was likely colored by the fact that GST Technical Services appears to have used L-1 visas for “wholesale transfer of hundreds” of Indians to the U.S. to provide software consulting services at other companies’ worksites. [9] USCIS and Congress have on multiple occassions taken steps to limit the availability of L-1 visas for such “job shops.”


[1] Matter of [name not provided], WAC-07-277-53214 (AAU July 22, 2008).

[2] The names of the petitioner and beneficiary are disclosed in an amicus brief by the U.S. Chamber of Commerce, at

[3] 8 C.F.R. § 214.2(l)(1)(ii)(D); see INA § 101(a)(15)(L).

[4] Memo by James A. Puleo, Acting INS Exec. Assoc. Comm’r, “Interpretation of Special Knowledge” (Mar. 9, 1994).

[5] Matter of [name not provided], supra, at 21.

[6] Adjudicator’s Field Manual § 3.4(a).

[7] Internal guidelines may be challenged as illegal if they are in fact legislative rules or if they violate law. See generally William F. Funk, When is a ‘Rule’ a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, available at

[8] Matter of [name not provided], supra, at 26, citing Matter of Penner, 18 I. & N. Dec. 49, 51 (Comm. 1982).

[9] Matter of [name not provided], supra, at 36.

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